A Scottish Opinion From America

What is the National Interest Wavier (NIW)?

Unless you are familiar with United States immigration processes, you’ve probably never heard of the national interest waiver (NIW). Even then, the NIW is a path to a green card reserved for the select few. For them though, the NIW is the first step towards becoming a permeant resident in the United States.

The national interest waiver (NIW) is an employment-based petition in the EB2 category for immigration to the United States. The petitioner’s expertise is deemed to be of national interest and therefore are provided a waiver that exempts them from requiring employer sponsorship for labor certification. These waivers are reserved for those that are highly-skilled and petitioners either hold an advanced degree or have exceptional ability.

Tens of thousands of foreign nationals apply for the NIW each year, despite the hassle, expense, and the USCIS’s processing backlog. What then, is the benefit of using this immigration strategy, who is eligible, and what is needed to be successful?

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Why Apply for an NIW?

Obtaining a green card through employment in the United States usually involves an employer acquiring labor certification for the employee. This is a long and expensive process, which frequently deters employers from engaging in it. For them, it is far easier to hire a worker that already has permission to work in the United States, even if they are less qualified than a foreign national. To make their resume more appealing to prospective employers, foreign nationals opt to get themselves a waiver to labor-certification before applying for work. The NIW the method to do this.

For the foreign national, getting labor certification waived in the national interest offers them control, options, and versatility in where they work. This dramatically increases the potential immigrant’s chances of landing desired employment that compensates at a level in line with their skills. Of course, an approved NIW petition is merely step one in having the right to work in the United States. You need an employment authorization card or another work visa to legally work. However, an approved NIW petition (I-140) means you can file for your I-485 (green card/permanent residence form) and your I-785 (employment authorization) if your filing dates are current.

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Who Can Apply for an NIW?

The NIW is a petition under the EB-2C visa category. This means you are applying as an employment-based 2nd preference petitioner. The EB2 category is for those that:

“hold an advanced degree (or equivalent) or have an exceptional ability in the sciences, arts, or business.”

A master’s degree or a Ph.D. is considered an advanced degree. Foreign degrees must meet the U.S. standard for these credentials. If you do not hold an advanced degree, a bachelor’s with five-years of work experience can be considered.

The other route is proving exceptional ability in the absence of an advanced degree. This can be achieved by having a minimum of 10 years of work experience, demonstrating you’ve commanded a comparative salary (or higher) in your field, international awards of excellence, and/or membership to a professional organization. Ideally, for a successful petition, you have a mix of those requirements.

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What is in the National Interest?

The law doesn’t explicitly state what it considers essential criteria for a foreign national to be in the national interest. All the Immigration Act of 1990 has to say about the NIW standard is it must be:

“significantly above that necessary to prove national benefit.”

It is left ambiguous purposefully. The petitioner must prove that the United States will benefit from their employment and U.S. law allows various avenues for this to be achieved.

Successful cases include arguments for improving the economy, housing conditions for the underprivileged, and scientific and technological research. Other avenues available are assisting in protecting the environment, enhancing working conditions, and skills in the public sector. This category is also open to physicians and entrepreneurs.

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Meeting the Three Prongs

As of December 27th, 2016, USCIS implemented these three criteria, known as the three prongs, to satisfy their requirements for an NIW. You MUST meet all three prongs:

The foreign national’s proposed endeavor has both substantial merit and national importance;

The foreign national is well-positioned to advance in their proposed endeavor;

When balancing all the factors, it would be in the national interest of the U.S. to grant the foreign national a waiver of the normal job and labor certification requirements.

Of these three prongs, it is the third that is the most difficult to argue. Your case must be able to convince the USCIS officer that normal job offers shouldn’t apply. Your petition will mostly revolve around making this argument. Thankfully, the third prong no longer requires you to prove that not providing a waiver would provide harm to the national interest or the need to compare your qualifications to U.S. nationals.

The NIW is the route taken to waive labor certification for highly-skilled foreign nationals wishing to live and work in the United States. To be considered for an NIW, you must hold an advanced degree or demonstrate exceptional ability in your field. To successfully petition, you must prove that granting you an employment certification waiver is in the national interest of the United States.

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Related Questions

How Long Does the Processing of the NIW Take?

As of October 2019, you can apply for an NIW from either the Texas Service Center (TSC) or the Nebraska Service Center (NSC). Which center you apply to depends on your location in the US. Currently, the average wait time at TSC is 11.5 – 14.5 months and NSC is 6.5-8.5 months. There is currently no premium processing option for the NIW.

Does a successful NIW petition Guarantee a Green Card?

In short, no. Once you have your I-140 approved, you still need to submit the I-485 to change your status to a permanent resident (green card holder). Getting I-140 is the difficult aspect of the process and if you have all your documents in order, the I-485 is comparatively simple. However, you may be rejected for a green card based on issues related to your background check, taxation history or medical condition, among others.